Mens Rea

Question 1

what must P prove?

Answer 1

P must prove that D committed the actus reus with the relevant guilty mind (i.e. mens rea)

If P cannot prove this, D will not be convicted

Question 2

what are the different mens reas?

Answer 2

o Intention
o Recklessness
o Negligence
o No mens rea (strict liability)

Question 3

what is the MR for murder?

Answer 3

intention

Question 4

what should intention not be confused with?

Answer 4

• It should not be confused with motive

Question 5

what is the most culpable MR?

Answer 5

intention

Question 6

what are the types of intention?

Answer 6

• There is direct and indirect intention

Question 7

what is direct intention?

Answer 7

• i.e. where D seeks to achieve the consequences of their act
• In other words, D has direct intent to commit an offence if the consequence, whether it be death, criminal damage or an assault, is their aim or purpose, even if they thought they were unlikely to succeed

Question 8

what is indirect intention?

give an example

Answer 8

• i.e. when D commits the actus reus, and the consequence is a by-product and not the principal purpose of what D was trying to do

example:

Mario wants to kill Dan. He intends to do so by cutting the brakes on Dan’s car. Sarah is a passenger and also dies. This and undesired consequence of his actions. Mario then tries to argue he is not guilty of murdering Sarah because he did not have the mens rea. The judge will apply the principles of indirect intention.

Question 9

what is the indirect intention test?

Answer 9

the judge will direct the jury to find indirect intention where…
o The consequence of D’s act (or omission) was virtually certain to occur; and
o D foresaw the consequence as being virtually certain

Question 10

re: indirect intention

explain stage 1…‘the consequence was virtually certain’ limb

Answer 10

 This is an objective test  This is an objective test
 The court has not given any percentage figure of probability to guide this determination.

Question 11

re: indirect intention

explain stage 2 ‘D foresaw the consequence as being virtually certain’

Answer 11

 This is a subjective test
 Whilst this is looking at what D foresaw (i.e. not the reasonable person), s8 of the CJA 1967 has said that the reasonable person may be a good indication of what D did foresee (in other words, it gives jurors flexibility – they do not have to accept what D has said)

Question 12

what is the MR for most crimes?

Answer 12

intention or recklessness

Question 13

explain recklessness

Answer 13

D took a risk which was:
o Unjustified or unreasonable; and
o D must be aware of the risk and go on to take it (i.e. subjective recklessness)

Both elements must be satisfied for D to be convicted

Question 14

re: recklessness

explain ‘unjustified and unreasonable risk’

Answer 14

This is an objective test

Usually easy to satisfy because criminal conduct is unjustified, but the courts:
o Reasons for D’s actions (i.e. what is the social utility of D’s actions?);
o What the risk was; and
o The likely consequences

Question 15

re: recklessness - ‘D must be aware of the risk…’

what type of test is this?

Answer 15

subjective

Question 16

re: recklessness - ‘D must be aware of the risk…’

what is the test?

Answer 16

D is reckless if they foresee a risk that something might happen as a result of their behaviour and, with that foresight, they go on without justification to take it

o Awareness of the risk however small is sufficient

o D must actually foresee the risk. It is not that D should have foreseen the risk or a reasonable person.

Question 17

re: negligence

what type of test is this?

Answer 17

objective

Question 18

re: negligence

what is the test?

Answer 18

did D fall below the standard expected of a reasonable person?

If so, they are negligent and guilty of the offence

D need not foresee the risk to be guilty. Alternatively, D may have foreseen the risk but took no, or inadequate steps, to avoid it

Question 19

re: negligence

what is an example of a common law offence?

Answer 19

gross negligence manslaughter

Question 20

re: negligence

what is an example of a statutory offence?

give the wording of the offence

Answer 20

s3 RTA 1988, careless driving.

“drive a mechanically propelled vehicle on a road….or without reasonable consideration…”

“reasonable” confirms D will be guilty if they fell below what was expected of a reasonable driver

Question 21

re: negligence

how is this MR slightly different to intention and recklessness?

Answer 21

The court are concerned with the act (i.e. the driving), not D’s state of mind.

Question 21

what is a strict liability offence?

Answer 21

mens rea is not required for one or more elements of the actus reus

Question 22

give some examples of strict liability offences

Answer 22

• These offences are usually created by statute and are regulatory in nature, i.e.:
  o Food safety
  o Consumer protection
  o Misuse of drugs
  o Environment
  o Road safety
  o Health and safety

Question 23

how is a strict liability offence identified?

Answer 23

• the statute may expressly say
• if the act is silent, look for words that suggest a MR is required (i.e. intention, knowing, willingly), this means it is not a strict liability offence

Question 24

what happens if the legislation is unclear whether it is a strict liability offence or not?

Answer 24

there is a rebuttable presumption that mens rea is required

Question 25

what will the courts consider when P is seeking to rebut that mens rea is required?

Answer 25

o the statute as a whole. If other parts of the legislation use words that suggest mens rea, it will be implied that Parliament left them out of the relevant section for a reason and intended to create a strict liability offence
o Social context > the greater the social danger the offence is aimed at preventing, the more likely it will be a strict liability offence
o If conviction will result in a heavy penalty, the courts are less likely to infer strict liability due to potential injustice

Question 26

when does the doctrine of transferred malice apply?

Answer 26

The doctrine of transferred malice applies where D intended to (or recklessly) hurt one person but inadvertently causes harm to a second person.

This also applies to property damage i.e. D intended to damage one person’s car, but accidentally damages another car

This only applies where the actus reus and the mens rea are in relation to the same offence

Question 27

how does the doctrine of transferred malice work?

Answer 27

Normally, D wouldn’t have the necessary MR. The doctrine works to transfer the MR (i.e. intention/recklessness - called malice) to the unintended victim to complete the offence.

Question 28

re: doctrine of transferred malice

give an example to explain ‘this only applies where the actus reus and the mens rea are in relation to the same offence’

Answer 28

D threw a stone intended to hurt someone. He missed but caused property damage. Transferred malice could not apply because the AR was for offence, but his MR was for assault.

Question 29

re: doctrine of transferred malice

when is this unlikely to be necessary? Explain this.

Answer 29

where the offence can be committed recklessly (most offences can be)

this is because for recklessness P only needs to prove that D foresaw the risk. This is a very low threshold to satisfy.

Question 30

how must the AR and MR interact?

Answer 30

they must happen at the same time

In other words, D must have the required mens rea at the time they commit the offence

Question 31

what principles assist the coincidence of AR and MR?

Answer 31

o Continuing act principle
o Single transaction principle

Question 32

what is the continuing act principle?

Answer 32

In a continuing act, the defendant’s physical act satisfies the actus reus, and at some point during that act, they also have the necessary mens rea for the offence.

The actus reus is treated as a continuing process rather than a single moment in time. This allows the court to align the mental and physical elements of the crime.

Question 33

what is the single transaction principle?

Answer 33

In a single transaction, the defendant undertakes a series of acts that collectively make up the crime. As long as the defendant has the necessary mens rea at some point during the series of acts, the actus reus and mens rea can be considered to coincide.

In other words, the actus reus is not confined to a single act but can span multiple steps in the defendant’s conduct.

Question 34

what is the difference between the single transaction principle and continuing act principle?

Answer 34

Continuing Act: Focuses on extending the physical act over time so that the mens rea can align with it.

Single Transaction: Focuses on treating multiple connected acts as one overarching event, allowing the mens rea to apply to the series as a whole.

Question 35

give an example of a continuing act

Answer 35

the defendant accidentally drove his car onto a police officer’s foot (actus reus) but then refused to move the car when he realized what he had done (mens rea). The court treated the act of driving onto the foot and leaving it there as a “continuing act,” allowing the mens rea and actus reus to coincide.

Question 36

give an example of single transaction

Answer 36

the defendants planned to kill a victim. They struck the victim on the head (mens rea to kill) and, believing he was dead, rolled his body off a cliff. The victim survived the blow but died from exposure. The court treated the entire sequence of events as a “single transaction,” so the initial intent to kill coincided with the acts causing death.

Question 37

what are offences of basic intent?

Answer 37

i.e. crimes which can be committed either intentionally or recklessly

This is important because D cannot rely on the defence of voluntary intoxication

Question 38

how are offences classified and what are the classes?

Answer 38

the offences are classified by intent (NB: different to MR intention):
o Offences of basic intent
o Offences of specific intent
o Offences of ulterior intent

Question 39

what are offences of specific intent?

give examples

Answer 39

i.e. a crime that can only be committed intentionally, such as:
o Murder  mens rea is intent to kill or cause GBG
o Theft  mens rea is intention the permanently deprive

D can plead the defence of intoxication

Question 40

what are offences of ulterior motive?

give an example

Answer 40

offences where P must prove that D committed the required actus reus and mens rea AND prove an additional mens rea

in other words, that they intended to bring about a consequence that goes beyond the actus reus

It is irrelevant whether they actually did bring about the consequence

For example, in relation to aggravated criminal damage, it is irrelevant that they did not actually endanger anyone’s life, but they must have intended to